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FREE FLORIDA MEDICAID AND ESTATE PLANNING SEMINAR - CHOOSE ONE OF THREE LOCATIONS

FREE SEMINAR!

Hear about how you or a loved one may qualify for Florida Medicaid and veterans "aid and attendance" benefits before losing everything to long-term care costs - even if your loved one is already in a nursing home.  

Find out how good estate planning can protect you, your family and your assets from the many other threats we face as we age.

Attendees are eligible to receive a free, one-hour consultation from one of our attorneys (assuming we can assist you).
No reservations necessary. Light refreshments.

PORT ST. LUCIE
Tuesday, June 25
1:30 pm to 4:00 pm 
Port St. Lucie Holiday Inn,10120 S. Federal Highway
  
BOYNTON BEACH
Wednesday, June 26
1:30 pm to 4:00 pm
Courtyard by Marriott, 1600 N. Congress Ave.

PALM BEACH GARDENS
Thursday, June 27
1:30 pm to 4:00 pm
Palm Beach Gardens Marriott, 4000 RCA Blvd.

  More information at The Karp Law Firm website, or call us at  (561) 625-1100

Free Seminar: Medicaid & VA Benefits For Nursing Home Costs, Florida Estate Planning

FREE SEMINAR

Tuesday, April 30
1:30 pm to 4:00 pm
Palm Beach Gardens
Marriott Hotel, 4000 RCA Blvd.

Wednesday, May 1
1:30 pm to 4:00 pm
Boynton Beach
Courtyard by Marriott, 1600 N. Congress Ave.

***

•  Hear about how you or a loved one may qualify for Florida Medicaid and veterans "aid and attendance" benefits before losing everything to long-term care costs - even if your loved one is already in a nursing home. 

• Find out how good estate planning can protect you, your family and your assets from the many other threats we face as we age.

***

No reservations are necessary
 

Attendees are eligible to receive a free, one-hour consultation from one of our attorneys (assuming we can assist you)

Light refreshments

No obligation

  More information at The Karp Law Firm website, or call us at  (561) 625-1100

Long-Term Care Costs Increase Sharply

Genworth Financial has released its 2017 survey of long-term care costs. The picture is not encouraging. Although the cost of care has always been shockingly expensive, and increased annually without fail, the rate of increase seems to be picking up.

Nationally, the median cost of a private room in a long-term care facility is now $97,455, a 5.5% increase over 2016. This is three times the national inflation rate. Compare this to the 1.24% increase from 2015 to 2016. In South Florida, the cost is even higher than the national median: $116,800 annually for a private room.

It’s not just nursing homes that cost more. So do other long-term care services. The national median cost of a home health aide rose even more sharply than nursing home costs, up 6.17% from last year, to $21.50 per hour. Homemaker services rose 4.75%, to $21 per hour. Even adult day care services costs rose, up 2.94% to $70 per day.

Despite these daunting numbers, two thirds of Americans still believe that government programs will cover all or some of their care if they ever need it! Every day my office receives panicked calls from family members who have discovered that assumption isn't so. Unless you are very poor or very wealthy, you are on your own.

With no coherent national policy to address the growing crisis, each of us has to take steps in anticipation that we will need long-term care at some point in our lives. For some, that means securing long-term care insurance. Contact our office and we can put you in touch with someone who can discuss your insurance options. Alternatively, make proactive plans to secure Medicaid benefits for long-term care. Contact a Florida Bar Certified Elder Law Attorney to discuss how you can protect all or some of your assets from the cost of long-term care.

Check out the costs of long-term care services in your state  here.

On the radio tomorrow to discuss elder law issues!

I will be a guest on the Boomer Times & Senior Life radio show hosted by Anita Finley tomorrow, November 5, 2016 starting at 7:30 a.m.

You can listen to the live broadcast on the radio here:

WSBR 740AM 

or 

WWNN 1470 AM.

You can listen to the live stream here:

www.wsbrradio.com  - click "listen live" in the upper right hand corner

or

www.wwnnradio.com - click "listen live" in the upper right hand corner.

Joseph Karp named one of Florida's top attorneys

Attorney Joseph S. Karp has been named to the 2015 Super Lawyers List by Super Lawyers, a division of Thomson-Reuters. 

Less than five percent of Florida's attorneys receive this honor. Attorneys are rated based on peer review, and on several measures of professional competence that include experience, education, honors, awards, special certifications and licenses, scholarly writings and other criteria.

Mr. Karp is the founder of The Karp Law Firm, an estate planning and elder law firm with Florida offices in Palm Beach Gardens, Boynton Beach and Port St. Lucie.

Read our Annual Estate Planning/Elder Law Newsletter

Planning Points, The Karp Law Firm's annual newsletter, is now viewable online.  

Click here.

New book on the downside of "medicalizing" the aging process

Surgeon and author Dr. Atul Gawande's newest book, "Being Mortal," was recently released. Its sensitive subject matter has sparked serious debate among physicians, the clergy and the public. Gawande argues that our society has "medicalized" aging, resulting in a greater concern with extending life rather than helping people maximize the time they have left. Gawande believes that the medical community's focus on keeping people "safe" at all costs does a tremendous disservice to the aging, the sick, and their families. 

All of us have our own opinions on this most personal of issues. It's a subject that invariably comes up when my elder law clients discuss their preferences for health care, whether they want to establish a living will, etc. But whatever your personal feelings, you will probably find the book worth a read. Here are some recent reviews:

NY Times 

Mother Jones

GeriPal blog

Another thought-provoking commentary on this topic is "Why I Hope to Die at 75 - An Argument that society and families - and you - will be better off if nature takes its course swiftly and promptly," by Dr. Ezekiel Emmanuel. To be clear, the title is a bit of a misnomer. The author is not not actually hoping to die at 75, nor does he advocate that anyone else should. He simply says he just doesn't want to live to a very old age if the years prove to be too painful for him and his loved ones.

What do you think? My readers and I would be interested to hear your input. Post a comment!

Happy to announce I am a 2014 Super Lawyer!

I am privileged to announce I have again been named a "SuperLawyer"  by Super Lawyers, a division of Thomson Reuters. The organization evaluates attorneys nationwide based on outstanding professional achievement and peer recognition. Each year, no more than 5% of the attorneys in each state are recognized. The Super Lawyers list is intended to provide consumers and legal professionals with a credible resource when searching for outstanding legal counsel.

The Perils of Falling: Goodbye to The Brady Bunch's Ann Davis

Actress Ann B. Davis, best known for her role as the glib housekeeper on The Brady Bunch television show, passed away yesterday as a result of a fall. She was knocked unconscious when she fell in the bathroom at her San Antonio home, and passed away shortly thereafter. Davis, 88, had used a walker in recent years but was otherwise in good health. 

What a shame. And, perhaps, preventable. As my clients well know, I am always reminding them about watching their step and avoiding falls. In fact, my monthly article in April's Boomer Times and Senior Life dealt with this very subject. As a Florida elder law attorney, I have known many reasonably healthy older people who have lost their lives after a preventable fall. I have also seen many cases in which a fall - often preventable - has led to permanent disability, which in addition to its physical and psychological toll,  wreaked financial havoc on both patient and family. 

There are no guarantees in life. That's why planning for disability should be a part of everyone's estate plan. But it's preferable to avoid becoming disabled in the first place. First on your list: watch your step, rely on any mobility devices you have, and make sure your environment is a safe and secure one. For additional information, check out my article in Boomer Times and Senior Life.

2014 Florida Estate Planning and Elder Law Newsletter

Planning Points, our annual newsletter, is now viewable online. Click here.

The best failing grade I ever got, or "Who Talks Like That?"

I'm dedicating this post to Dr. William Vesterman, my Freshman English instructor at Rutgers University in the 1960s. Luckily for Rutgers students, Dr. Vesterman is still at the university, celebrating his fiftieth year of teaching. This post may seem like a diversion from elder law and estate planning issues, but bear with me. A frequent complaint about lawyers is that they talk in "legalese." For many lawyers, lapsing into that second language is, well, second nature. So I am thrilled when clients compliment my ability to explain the intricacies of the law to them in plain English, both in speech and writing. To be frank, part of each compliment really belongs to Dr. Vesterman. He gave me a grade of 50 on the first paper I ever submitted in college. He taught me - pointedly but kindly - that simpler is always better. To this day I call it the "Who talks like that?" lesson. My recent email exchange with Dr. Vesterman explains:

-----Original Message-----

To: William Vesterman

From: Joseph Karp

Subject: Who Talks Like That?

Sept. 1964. I was a freshman at Rutgers .My first paper was an analysis of Frost's "Road Not Taken." I thought it was brilliant and written with my superior collegiate vocabulary. My instructor graded it 50, a real failure.  The only comment was, "Who talks like that? " It was a lesson well learned. To this very day I repeat the story and review documents, briefs, letters etc. with that mantra in mind. This morning while reviewing an attorney's letter, I looked up at my assistant and said, "Who talks like that?" I then retold the story of the 50, the comment, and the name of the instructor,  William Vesterman.  So 49 years later,  I want to thank you for that 50; it was a lesson well learned . I am forever in your debt. 

And Dr. Vesterman, with the same clarity and conciseness he always advocated, responded simply:

From: William Vesterman 
Sent: Tuesday, October 29, 2013 9:49 AM
To: Joseph S. Karp
Subject: Re: Who talks like that?

Dear JSK,
Thanks for the good news in this my 50th year of teaching on the banks!
Best,
WV

We all know how frustrating it is to not understand the person who answers the phone at tech support. How much more frustrating, even frightening, to not understand your attorney when you are discussing the most critical legal plans you'll ever make for yourself and your family! Estate planning is about giving clients peace of mind. Simple communication is key. That's why I always keep in mind  Dr. Vesterman's words: "Who talks like that?"

Baby Boomers thinking about caring for aging parents, but not doing much to prepare for it

Interesting: A recent survey by More magazine found that while a majority of Baby Boomers want to support and provide for their aging parents, but very few know what it will entail or have made any preparations for that eventuality. This certainly mirrors what I see in my own Florida elder law practice. In this segment of the Aug. 28 Today show, Matt Lauer discusses the findings with guests and interviews one Baby Boomer who is currently caring for his parents.

Visit NBCNews.com for breaking news, world news, and news about the economy

Long-Term Care Commission meets, recommendations due end of September

The Federal Commission on Long-Term Care held its first meeting at the end of June. It has a scant three months to wrap up business. By the end of September, the panel must submit recommendations on how to finance long-term care services for seniors and the disabled. There are six Republicans and nine Democrats on the commission. Dr. Bruce Chernof heads the group.

Given the recent history of animus between the two political parties, it's little wonder that many in Washington are skeptical about the group's chances of success. I know one thing: something must be done. As a Florida elder law attorney, I meet daily with families in agony over how to finance care for their elderly parent, spouse or other loved one. 

Right now, the enormous expense of long-term care is threatening Americans' savings and security. The Medicaid long-term care program, which covers the expense for most people receiving long-term custodial custodial care in nursing homes, cannot keep up with the demand from our aging population. At the same time, long-term care insurance has become more expensive and difficult to obtain.

According to a report submitted to the commission by the AARP, this bad situation is only going to get exponentially worse. Blame demographics: The population bulge that is the Baby Boomers provide much of the family care that keeps elderly parents out of nursing homes. However, as the Boomers age and themselves need long-term care, there will be fewer members in the next generation to serve as family caregivers. The AARP 's chart illustration the problem:

You can read the original AARP report here.

The commission will probably not be the final word or have all the solutions. But even if it is just the first step in the long-overdue national discussion about this serious issue, it will have accomplished a great deal.

If you are concerned about long-term care costs, we can advise you about the new alternatives to traditional long-term care policies. Traditional long-term care policies require an annual premium and can have their premiums raised; moreover, if you do not file a claim all of the premiums are lost to the insurance company. There are newer types of policies available that cannot raise the premium, and guarantee the return of most of your premium, and in some cases even more if you do not use your coverage. Alternatively, our Florida elder law attorneys can assist in certain cases in planning for Medicaid and/or Veterans benefits for long-term care costs. Contact us for advice.

New study: longer life, not lifelong good health for the average American

The most comprehensive study of American health trends in 15 years was published this week in the Journal of the American Medical Association. It reveals what most of us know from our own experience: the average American is living longer, but not necessarily better. From 1990 to 2010, average lifespan increased from 75.2 years in 1990 to 78.2. However, the number of years a person typically spends in ill health also increased, from 9.4 years to 10.1 years. 

These are just numbers. Behind the statistics are real people and families coping with tremendous health, psychological and often, economic burdens. The cost of long-term care can decimate most families' life savings in no time; this is the number one concern of many of my clients, what keeps them up at night.

No one has come up with a solution that will ensure a long life and lifelong good health. But there are steps you can take to protect your nest egg and your family if not all those extra years turn out to be as healthy as you hope. Talk over your concerns with a certified elder law attorney.

Read the Wall St Journal's summary of the study here: http://online.wsj.com/article/SB10001424127887324694904578597444105321914.html?mod=WSJ_hpp_sections_health

Florida residents: how the Defense of Marriage Act ruling may affect you and your loved ones

The Supreme Court last week struck down the 1996 federal Defense of Marriage Act, which defined marriage as a union solely between a man and a woman. The 5-4 ruling found DOMA unconstitutional because it denied same-sex couples equal protection under the Fifth Amendment of the U.S. Constitution. The ruling means that same-sex legally married couples should be entitled to all the same rights and benefits under federal law as opposite-sex married couples. That's 1000+ rights and benefits. 

For couples who were married in and reside in the District of Columbia or one of the twelve states that currently recognize gay marriage, the situation is a clear-cut and positive development. The situation is less clear for same-sex couples who reside in Florida and have been legally married in another state, because Florida does not recognize the legality of same-sex unions. The Florida Constitution, as amended, bans same-sex marriage and expressly does not recognize same-sex marriages from other jurisdictions.

In this post I clarify what we now know, and still have yet to learn, about the impact of DOMA's reversal on same-sex couples residing in Florida who have been married elsewhere, with emphasis on estate planning, life planning and long-term care planning issues. I also point out how the Supreme Court ruling may affect anyone planning his/her estate who wishes to include a beneficiary who is in a same-sex marriage ,regardless of where that beneficiary resides.

Federal Benefits for Same-Sex Married Couples

Some legal experts have questioned whether spouses in same-sex marriages living in states like Florida will be eligible for all the federal benefits and rights accorded to straight married couples, notwithstanding DOMA's reversal. One early signal that they probably will: Just 48 hours after the Supreme Court ruling was issued, the U.S. Immigration and Citizenship Services Agency awarded a green card to Bulgarian immigrant Train Popov, a man, who had been married in New York to another man, American Julian Marsh. The couple lives in Miami. Based on this development, one can reasonably presume that other federal agencies will fall into line, and that same-sex married couples living in Florida will have access to the full range of federal benefits that provide preferential treatment for spouses.

That said, it is important to point out that different federal agencies use different standards to identify who is or isn't married. Some agencies, including the Social Security Administration, Internal Revenue Service and Veterans Administration have historically used place of residence as the criterion, meaning that they consider a couple to be married only if their domicile considers them married.  From that point of view, a same-sex couple who has been married in, say, Vermont and who now resides in Florida, would not be considered married. Obviously this is a grey area of the law that has yet to be resolved.

Assuming for the moment that all federal benefits will apply to same-sex married couples regardless of where they live, the federal benefits they will receive include:

• Federal estate tax breaks:  Unlimited marital deduction when one spouse passes his/her estate to the survivor. (Prior to the DOMA ruling, any amount in excess of $5.25 million passed to your partner was subject to federal estate tax.) A surviving same-sex spouse may also use any unused portion of the deceased spouse's exemption (portability).

• Social Security advantages: Like their heterosexual counterparts, a surviving spouse in a legal same-sex union may opt to collect the decedent's Social Security benefits if those benefits are greater than what the survivor is currently receiving. Also, while both spouses are alive and collecting Social Security, the lesser-earning spouse can elect to receive 50% of the higher-earning spouse's benefit.

• V.A. Benefits: All the benefits that heterosexual married couples have enjoyed are now available to same-sex marrieds. For example, if the spouse is entitled to pension with aid and attendance, the survivor will also be entitled to those benefits, provided of course that he/she meets all other criteria. 

• 401-ks:  Under federal law, the spouse is the automatic beneficiary. Therefore, if you are legally married in a state that recognizes same-sex marriage, your spouse will automatically be your beneficiary (whether you like it or not). 

• Individual Retirement Accounts: A deceased spouse's Individual Retirement Account can now roll over into the survivor's account without being taxed, and the survivor may take minimum required distributions based on his/her own life expectancy, and then let the ultimate beneficiary stretch it out.

• Medicare: All the spousal privileges and benefits that apply to opposite-sex married couples are now available to same-sex marrieds. Spouses of Medicare recipients can enroll in the program even if they lack the requisite work history. 

• Income taxes: Same-sex married couples may now file joint returns, which is generally advantageous.

 

What has NOT changed at the Florida state level for same-sex married couples

 
As noted above, nothing has changed at the state level, at least for now. Florida laws affording preferential status to married couples do not apply to same-sex married couples, despite the marriage being recognized as legal in a different state. Among the Florida benefits still NOT available to same sex marrieds are:

• The right to an elective share of the spouse's estate.
• The right to a life estate in your spouse's homestead, or one-half ownership in that property.
• Consideration as the natural health care proxy for your spouse, second only to a court-ordered guardian.
• Same-sex spouses may not hold assets as tenants by the entireties, which heterosexual couples may do and which provides creditor protections.
• If a same-sex spouse dies intestate, the survivor is entitled to nothing. Married opposite-sex survivors are entitled to 50% of the estate if there are children from the decedent's prior marriage, or 100% if the decedent has no children from a prior relationship.

At this juncture, it may be wise for committed same sex couples who reside in Florida to consider being married in a state that recognizes same-sex unions. Although it obviously will not change the nature of the relationship from the point of view of Florida law, the spouses will at least be considered married for federal benefits purposes.

If you are in a same-sex marriage recognized in another state, but you are domiciled in Florida, you must take particular care with your planning to ensure that you and your spouse are protected, since the state provides you none of the protections available to same-sex married couples. Contact our offices for the expert advice required for your situation.

A grey area: Long-term care Medicaid benefits for same-sex married couples

Florida Medicaid regulations are a compilation of both federal and state statutes. Therefore it is unclear as to how the DOMA ruling will play out for Florida same-sex couples who are legally married in other jurisdictions and who wish to do Medicaid planning to protect themselves and one another from the cost of long-term care. Two tools commonly used by elder law practitioners in Medicaid planning, spousal refusal and unlimited interspousal transfers, may not be available in Florida to such couples.Only in the fullness of time will we know how these issues will be resolved by the courts. Meanwhile, our experienced Florida elder law attorneys can give you the most accurate and up-to-date advice.

Estate planning if one or more of your beneficiaries are in same-sex marriages

The Supreme Court ruling opens up sticky problems for those planning their estates and whose intended beneficiary (or beneficiaries) is in a same-sex marriage. 

For example, suppose you are a Florida resident and your daughter Ann resides in Massachusetts, where she was married to her spouse, Susan. If Ann predeceases Susan, do you or do you not want Susan to get Ann's share? If your will identifies Ann's "spouse" as the contingent beneficiary, will the Florida Probate Court recognize the validity of that language and allow Susan to receive the bequest - and is that what you desire? If it is, in my view it would be better to omit the word "spouse" and instead identify Susan by name.

Powers of appointment create another area of uncertainty. Sometime a client who wants to leave money to someone in a trust does so with a general power of appointment; meaning the beneficiary is permitted to leave the funds to anyone the beneficiary chooses. In other instances, someone will leave funds under a limited power of appointment, restricting to whom the beneficiary may leave the funds, generally that beneficiary's "spouse and lineal descendants." As you can imagine, DOMA's reversal opens up a legal can of worms with respect to limited powers of appointment. Can you now put restrictions in your limited power of attorney restricting the gender of the beneficiary's spouse? If your limited power of appointment states that your son can only leave his share to his "wife," does that disqualify a same-sex spouse, and is that what you want?  Our highly experienced estate planning attorneys can anticipate these potential problems and draft your estate planning documents in a way that ensures your wishes are carried out in this new legal world.
 
In conclusion, we can look forward to many test cases, lawsuits and rulings on all of these matters over the coming months and yes, even years. Check our website and this blog to keep up with these developments and what they may mean for you and your loved ones.

To read the Supreme Court decision, click here. 

Florida has a large senior population but other states also greying fast

Sure, Florida has a large numbers of retirees. No surprise there. But this may surprise you: Florida's over-65 population is not growing as fast, percentage wise, as in other states. In fact, it doesn't even crack the top ten. The state that's greyed the most in the past decade? Alaska. Yes, Alaska, where the percentage of retirees increased nearly 60% from the year 2000 to 2011. Those 65 and older now constitute 8% of the state's population. Following Alaska's 65-and-older growth rate are these states:

Nevada: The over-65 population doubled (53.1%) in the past decade. Seniors now number 12.5% of the state's population.

Arizona: 37.3% increase. 14.2% of the population are seniors.

Idaho: Tying Arizona, there has been a 37.3% increase in the number of seniors in Idaho. They constitute 12.8% of the population..

Colorado: The mountain state's senior population grew 37.2% since 2000. They constitute just over 11% of the state's residents.

Georgia: Senior's numbers grew 36.5%. The over-65 population of Georgia now stands at 11%.

South Carolina: 35.4% increase, now 14.1% of the state's total population.

Utah: The state's over-65 population increased by 35.3% since 2000, and now stands at 9.2% of the total.

New Mexico:  32.6% increase of those 65 and older, now 13.6% of the current population.

North Carolina: With a growth rate of 31,7%, 13.2% of the state's population are now 65 and older.

If you or someone you love in Florida is facing age-related legal challenges in Florida, talk to our Florida elder law attorneys.  

Women and long-term care insurance

Ladies, this is a good time to get serious about buying long-term care insurance. You'll soon have to pay more than your male counterparts.

Long-term care insurance pays for assistance with activities of daily living, such as bathing and dressing. Now Genworth Financial, one of the biggest players in the long-term care insurance industry, is raising premiums for women. The rate increases will begin rolling out in various states this spring, and could go as high as 40%. Experts predict other companies will follow suit.

Why? Economics. Women live longer, so they cost the insurance companies more. Genworth says two thirds of every dollar it pays out goes to women. Consider these statistics from The New York Times  (Feb. 6, 2013):

• On average, women outlive men by 5 years. Among those born in 1960, the average man will live to age 67 and the average woman to age 73. And women who reach age 65 can expect to live an average of 20 more years.  
• By age 75, 7 in 10 women are widowed, divorced or have never been married. Some 40 percent of them live alone, compared to 22 percent of men. Two-thirds of those past the age of 85 are women, as are 80% of centenarians.  
• Women who live to age 65 experience on average two years of disability requiring assistance before death. Those who reach age 80 will require three years of assistance.
• In nursing homes, the most expensive form of long-term care, 7 in 10 residents are women. They represent 76 percent of the residents in assisted living facilities and two-thirds of the recipients of home care.

The average premium in 2011 for a 55-year-old who qualified for preferred health discounts and bought between $165,000 and $200,000 of coverage was $1,720 (Source: American Association for Long-Term Care Insurance).  A 40% percent increase adds $688 in premium - and that's on top of the big price hikes we've already seen in the past years.

Genworth's new gender-based rates will apply only to women who buy new policies, not to women with existing policies or those who apply with their husbands. Companies generally provide discounts to couples who apply jointly for a policy.  

What should you do now? I advise that you look into purchasing long-term care insurance BEFORE the new rates roll out. In addition to the traditional long-term care policy, you may also want to look into alternatives like annuities and life insurance policies with long-term care riders, which allow you to pass to your beneficiaries any monies left over when you pass on. You may even be able to convert your current annuity or life insurance policy tax-free, and without any additional out-of-pocket expenses. You may contact our office if you need a referral to a financial professional who is familiar with these new products.

Can you disinherit an adult child?.

Not all parents enjoy a warm relationship with all their children. I've met with many parents - some pained, some resigned, others angry - who have been estranged from their children for years. They may have tried reaching out and been spurned by kids who want nothing to do with them. Or the parents may find the child's behavior so egregious or heartbreaking that they have just given up.

In these situations, parents often ask if they are obligated to leave anything to the estranged child. The answer is no. Under Florida law, you may disinherit an adult child entirely, or leave him as little as you desire, unless there is a court order in a divorce requiring the parent to do so. This could be part of a child support order for minor children; or a property settlement agreement where the parties have agreed and contractually obligated themselves to make provisions for their children, whether the children are minors or adults.  

If you plan to disinherit an adult child, or leave him less than what would probably satisfy him, it is crucial to create an ironclad estate plan. If you die without a valid Florida estate plan, Florida intestacy laws govern who gets your assets. And guess what: Florida law 732.103 states that if there is no surviving spouse, your estate passes to your lineal descendants.

The law requires that you recognize "the natural objects of your bounty" which of course includes your children. Therefore, if you wish to disinherit a child, I recommend that you acknowledge his existence in your Will and/or Trust by stating in the document that "For reasons known to me, I make no provision for (child's name) and/or the child's lineal descendants." Refrain from spelling out the actual reason you are making no provision. If you state a reason, you may provide a jumping-off point for the child to mount an estate challenge. Not revealing your reasons reduces the likelihood that your disgruntled heir can successfully challenge your dispositions.

People frequently ask if, as a way of acknowledging the child, they should leave him $1. This is a bad idea, for several reasons. First, leaving the child any amount automatically gives him the legal right to obtain information about your estate, without having to file a lawsuit. Second, even that paltry $1 gift must be delivered to the child and a receipt obtained. If a receipt cannot be obtained, the $1 gift will have to be filed with the registry of the court to be held for the beneficiary. All of these administrative steps incur additional costs, create delays, and cause unnecessary headaches for your Personal Representative or Trustee. Moreover, as you might expect, costing your estate money, creating delays and annoying your Personal Representative or Trustee is exactly what many disinherited children have in mind. I have seen cases where the child refused to take delivery of his "gift," ignored certified mail, refused to sign receipts, and threw up every possible obstacle to bog down the smooth administration of the estate. He need not launch a formal lawsuit to create problems, delay the Florida probate or trust administration process, and create hassles for your beneficiaries.

Occasionally a client wants to leave an estranged child a modest amount. I usually recommend that they  exclude that child as a beneficiary under the Florida Will or Trust, and instead, name him/her as the designated beneficiary of a specific asset, such as a bank account that is payable on death by the bank to the beneficiary, keeping your estate and its Personal Representative and/or Trustee out of the process. Because the asset has a designated beneficiary, it will pass outside the Will or Trust. The Personal Representative or Trustee should know about this account, and when the time comes, should request that the attorney contact the child or the bank with the information about the account, and a copy of the parent's death certificate. The child can then claim his/her inheritance on his own, and will have no opportunity as a beneficiary of the will or trust to create problems for the Personal Representative or Trustee.

Another question I'm asked with regularity is whether a "no contest clause" is of value. A no contest clause states that a beneficiary who challenges the estate will receive nothing. Clients hope this will discourage a child from making trouble when he/she finds out they are getting nothing, or a sum that is sure to disappoint. Although that may be viable in other states, under Florida law a no-contest clause, either in a will or a trust, is unenforceable. 

As a parent, I feel the pain of clients whose relationship with an adult child has been fractured. If this is your situation, I wish you and your family a speedy and happy reconciliation. But if that is not to be, you are entitled to do whatever you want with your hard-earned assets. Contact our estate planning lawyers for a consultation to discuss your needs.

Learn more about Florida Wills and Trusts and Florida estate administration..

To read the Florida Probate statutes online (an excellent cure for insomnia!), click here. 

Florida Elder Law & Estate Planning Newsletter Online

It's here.

The Karp Law Firm's 2013 Florida Elder Law and Estate Planning Newsletter, Planning Points, is now available online.
Click here.